SCRITTI IN ONORE DI

GIUSEPPE TESAURO

SCRITTI IN ONORE DI

GIUSEPPE TESAURO

II

EDITORIALE SCIENTIFICANAPOLI MMXIV

I volumi sono pubblicati con il contributo di:

Corso di Perfezionamento in “Diritto dell’Unione europea:la tutela dei diritti” dell’Università degli Studi di Napoli “Federico II”;

Programma di ricerca PRIN (2010-2011) “Il principio democratico nella formazione ed attuazione

del diritto internazionale ed europeo dell’economia”,Università LUM Jean Monnet Casamassima-Bari;

Consiglio dell’Ordine degli Avvocati di Napoli.

© 2014 Editoriale Scientifica srlVia San Biagio dei Librai 39

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ISBN 978-88-6342-672-4

Comitato scientifico

UMBERTO LEANZA

ANTONIO TIZZANO

TALITHA VASSALLI DI DACHENHAUSEN

ROBERTO MASTROIANNI

PATRIZIA DE PASQUALE

RITA CICCONE

Comitato di redazione

AMEDEO ARENA

VALERIA CAPUANO

ORESTE PALLOTTA

CELESTE PESCE

FLAVIA ROLANDO

INDICE

VOLUME II

LA TUTELA GIURISDIZIONALE NELL’UNIONE EUROPEA

781 CHIARA AMALFITANO

L’accesso ai documenti in possesso della Corte di giustizia dell’Unioneeuropea nell’esercizio delle sue funzioni amministrative

807 ANSELMO BARONE

Tutela cautelare e diritto comunitario: ovvero, Calamandrei (e Chio-venda) alla Corte di giustizia

819 ENZO CANNIZZARO

Rinvio pregiudiziale e Corti costituzionali nazionali

833 ANDREA CANNONE

Su alcune recenti clausole giurisdizionali relative alla Corte di giustiziadell’Unione europea

857 VALERIA CAPUANO

Il principio d’effettività nelle conclusioni dell’Avvocato generale Tesauro

883 MARINA CASTELLANETA

La proposta di regolamento sul procuratore europeo alla prova dei prin-cipi costituzionali italiani

911 RITA CICCONE

Il dialogo tra giudici nazionali e giudice europeo: primato del diritto odella cooperazione?

943 MASSIMO CONDINANZI

Le nouveau cadre réglementaire de la Cour de justice de l’Union euro-péenne. Un moyen suffisant pour répondre aux défis? Des défis suffisam-ment importants pour justifier une réponse?

965 ANTONIETTA DAMATO

Decisioni contumaciali e cooperazione giudiziaria penale nell’Unioneeuropea

993 DAVID EDWARD

The Contractual Foundation of Member States’ Obligations to the Indi-vidual: Advocate General Tesauro’s Opinion in Brasserie du Pêcheurand Factortame

1005 FABIO FERRARO

Riflessioni sulle conclusioni dell’Avvocato generale Tesauro nelle causeBrasserie du pêcheur e Factortame

1025 MASSIMO FRAGOLA

Alcune riflessioni sulla funzione consultiva della Corte di giustiziadell’Unione europea

1041 FRANCIS G. JACOBS

The Judicial System of the European Union: Some Suggestions for theFuture

1057 KOEN LENAERTS

The Decentralised Enforcement of EU Law: The Principles of Equiva-lence and Effectiveness

1087 ROBERTO MASTROIANNI

La responsabilità patrimoniale dello Stato italiano per violazione del di-ritto dell’Unione: il caso della direttiva sull’indennizzo delle vittime deireati

1121 PIERO PENNETTA, ELISA TINO

I sistemi giurisdizionali regionali in America Latina e nei Caraibi: unaanalisi comparata con l’esperienza comunitaria europea

1173 VALERIA PICCONE

L’ordinamento integrato, il giudice nazionale e l’interpretazione conforme

1219 FLAVIA ROLANDO

La tutela del diritto di accesso alla giustizia in materia ambientale nel-l’Unione europea

1245 CRISTINA SCHEPISI

Completezza e coerenza del sistema giurisdizionale dell’Unione europeaalla luce del nuovo quarto comma dell’art. 263 TFUE

1275 SEAN VAN RAEPENBUSH

Le Tribunal de la fonction publique de l’Union européenne, huit ansaprès sa création. Quelques réflexions parfois peu conformistes

1295 TALITHA VASSALLI DI DACHENHAUSEN

La ragionevolezza nella giurisprudenza della Corte di giustizia relativa al“sistema Bruxelles”

1303 UGO VILLANI

Il ruolo della Corte costituzionale nel dialogo con la Corte di giustizia

VIII Indice

DIRITTO E POLITICHE DELL’UNIONE EUROPEAPARTE PRIMA

1329 ANDREA AMATUCCI

Considerazioni sulle sentenze della Corte di giustizia del 21 giugno 2012e del 31 gennaio 2013 con riferimento al diritto di detrazione iva nel-l’ambito di operazioni inesistenti

1347 AMEDEO ARENA

Il sindacato della Corte di giustizia sulle misure nazionali anticoncorren-ziali a vent’anni dalle conclusioni Meng e Ohra

1369 ROBERTO BARATTA

Sugli accordi misti: spunti di prassi recente

1389 ANDREA BIONDI

The Application of the Principle of Remoteness in the Free MovementAcquis

1409 CLAUDIO BISCARETTI DI RUFFIA

Introduzione alle regole di concorrenza dell’Unione europea per le im-prese del settore agricolo

1433 CLELIA BUCCICO

L’incidenza del diritto comunitario e delle sentenze della Corte di giusti-zia in tema di fiscalità diretta

1473 RUGGIERO CAFARI PANICO

Concorrenza, benessere del consumatore e programmi di compliance.Nuove tendenze

1505 SUSANNA MARIA CAFARO

La dimensione mediterranea nelle relazioni esterne dell’Unione dopo laprimavera araba

1529 MARIANNA CAPUTO

Il divieto di interlocking

1559 GIOVANNI CELLAMARE

L’EUTM Mali

1571 ROBERTO CHIEPPA

Il ruolo dei giudici nazionali nell’applicazione delle norme comunitariedi concorrenza

1601 MARIA CLELIA CICIRIELLO

Diretta applicabilità ed effetto diretto delle norme comunitarie nella evo-luzione giurisprudenziale e nella prassi degli Stati

1617 ROSELLA CREATINI

La disapplicazione di una normativa nazionale in contrasto con il dirittocomunitario

Indice IX

1637 MARIO DE DOMINICIS

Il libro come bene culturale e le restrizioni al commercio intracomunita-rio nell’intervento della Corte di giustizia (osservazioni in margine alcaso Fachverband der Buch- und Medienwirtschaft)

1643 PATRIZIA DE PASQUALE

L’economia sociale di mercato nell’Unione europea

1663 GASPARE FIENGO

Nuove forme di democrazia partecipativa in Europa: il rafforzamentodella dimensione regionale nel Trattato di Lisbona

X Indice

CONTENTS: 1. Introduction. – 2. Francovich. – 3. Hedley Lomas – Advocate Gen-eral Léger. – 4. Brasserie du Pêcheur – Advocate General Tesauro. – 5. VanGend en Loos – the Role of Judge Trabucchi. – 6. The Contractual Founda-tion and the Doctrine of Sovereignty. – 7. The Contractual Foundation andthe «Independence» Issue.

1. Introduction

The contribution to the evolution of European Community lawof Advocate General Giuseppe Tesauro, nostro caro Beppi, needs noemphasis from me. His opinions, marked by his careful scholarshipand wry sense of humour, speak for themselves. One of the best andmost influential of his opinions was given in the landmark case ofBrasserie du Pêcheur & Factortame (hereafter «Brasserie du Pê-cheur»)1. This opinion, together with his opinions in BT 2 and Dillen-kofer 3, and that of Advocate General Léger in Hedley Lomas 4, pro-vided the analytical basis for the Court’s leading judgment inBrasserie du Pêcheur and the consequential judgments in the otherthree cases.

* Professor Emeritus, University of Edinburgh; Judge of the European Court ofJustice 1992-2004.

1 ECJ, 5 March 1996, Brasserie du Pêcheur v Germany and The Queen v Secretaryof State for Transport, ex parte Factortame Ltd and others, Joined Cases C-46/93 andC-48/93, I-1131.

2 ECJ, 26 March 1996, The Queen v H.M.Treasury, ex parte British Telecommu-nications plc, Case C-392/93, I-1631.

3 Joined Cases C-178/94, C-179/94, C-188/94, C-189/94 and C-190/94 Dil-lenkofer & Others v Germany [1996] ECR I-4845.

4 ECJ, 8 October 1996, The Queen v Ministry of Agriculture, Fisheries and Food,ex parte Hedley Lomas (Ireland) Ltd, Case C-5/94, I-2553.

DAVID EDWARD*

The Contractual Foundation of Member States’ Obligations to the Individual:

Advocate General Tesauro’s Opinionin Brasserie du Pêcheur and Factortame

This group of opinions and judgments illustrates the way in which,at their best, the work of the Advocates General (individually) and ofthe Judges (collectively) complement each other.

The purpose of this essay is to draw attention to two passages inAdvocate General Tesauro’s opinion in Brasserie du Pêcheur where hediscussed the source of the obligation of Member States to pay dam-ages for breach of Community (now Union) law.

His argument – that the foundation of Member State liability iscontractual – has always seemed to me to provide the essential link be-tween the legal structure of EU law and conventional internationallaw. In this essay I will suggest, first, that the contractual approach of-fers a way out of the sterile debate about State sovereignty («that dustydesert of abstractions through which successive generations of politi-cal philosophers have thought it necessary to lead their disciples»5)and, second, that it casts light on the current debate about the poten-tial effect of independence movements in Scotland, Catalonia andelsewhere on membership of the European Union.

As will be seen from the wording of the opinions of the AdvocatesGeneral in Hedley Lomas and Brasserie du Pêcheur, the contractual ap-proach can be traced directly back to the reasoning of the Court inVan Gend en Loos6. A contractual approach to the Treaty had beenurged by the Commission in its argument before the Court7. As wenow know, one of the two Italian judges, Alberto Trabucchi (later Ad-vocate General), played a leading role in altering the course of theCourt’s deliberations in that case.

In order to explain the background, it is necessary to refer brieflyto the Court’s judgment in Francovich 8 and to quote at some lengththe opinions in Hedley Lomas and Brasserie du Pêcheur.

994 DAVID EDWARD

5 J. BRYCE, The Nature of Sovereignty, in Lectures in History and Jurisprudence,Oxford 1901, p. 504.

6 ECJ, 5 February 1963, Van Gend en Loos v Nederlandse Administratie der Be-lastingen, Case 26/62, 1.

7 See the summary of the Commission’s argument on the substance of the firstquestion at [1963] ECR page 7 (English text) and Recueil 1963 page 14 (French text)where the word contracter is used. See also Advocate General Roemer’s opinion at[1963] ECR page 20 (English text) and Recueil 1963 page 39 (French text)

8 ECJ, 19 November 1991, Joined Cases C-6/90 and C-9/90 Francovich & Boni-faci v Italy, I-5357.

2. ‘Francovich’

In 1991, in the Francovich judgment, the Court held that the Ital-ian State would be liable to pay compensation for loss caused to em-ployees by the State’s failure to implement the Directive for their pro-tection in the event of the employer’s insolvency9. The court explainedthe source of the State’s obligation to pay damages for breach of Com-munity law in this way:

33. The full effectiveness of Community rules would be impaired and theprotection of the rights which they grant would be weakened if individ-uals were unable to obtain redress when their rights are infringed by abreach of Community law for which a Member State can be held respon-sible.34. The possibility of obtaining redress from the Member State is partic-ularly indispensable where, as in this case, the full effectiveness of Com-munity rules is subject to prior action on the part of the State and where,consequently, in the absence of such action, individuals cannot enforcebefore the national courts the rights conferred upon them by Communitylaw.35. It follows that the principle whereby a State must be liable for lossand damage caused to individuals as a result of breaches of Communitylaw for which the State can be held responsible is inherent in the systemof the Treaty.

The Court thus attributed the source of the State’s obligation tothe need to achieve the «full effectiveness» of Community law. By it-self, however, this explanation is not wholly satisfactory since a treatysystem may be «effective» but still be deficient in respects that renderit less than «fully effective».

3. ‘Hedley Lomas’ – Advocate General Léger

In his opinion in Hedley Lomas Advocate General Léger dealtwith an argument advanced by Member States that no liability couldattach to acts of the national legislature:

The Contractual Foundation of Member States’ Obligations to the Individual 995

9 Council Directive 80/987/EEC of 20 October 1980 on the approximation of thelaws of the Member States relating to the protection of employees in the event of theinsolvency of their employer, OJ L 283, p. 23.

106. Refuge can no longer be taken behind the supremacy or unchal-lengeability of legislation: it may give rise to an action for damages if it isnot in conformity with Community law with which each Member State,upon joining the Community, undertakes to comply — and to ensure thatit is complied with. By ratifying the original Treaties, the Member Stateslimited their freedom of action in the field of Community law. This ex-plains why the bringing of an action for damages against the State for thelegislature’s failure to act is perfectly permissible where the State’s liabil-ity is based on a breach of Community law, as Francovich shows, whereasthis is hardly conceivable in domestic law …10.112. …It is not a specific organ of the State but rather the Member Statequa State which must provide compensation.

Thus, Advocate General Léger traced the origin of State liabilityto the reciprocal obligations undertaken by the Member States (as dis-tinct from the organs of the State) when they ratified the Treaties.

4. ‘Brasserie du Pêcheur’ – Advocate General Tesauro

In his opinion in Brasserie du Pêcheur, Advocate General Tesaurocontinued the same line of thought as Advocate General Léger, butwas more explicit as to the contractual foundation of state liability:

26. Neither does it seem to me that affirmation of the principle of Stateliability for breaches of Community provisions having direct effect con-flicts in any way with the division of powers, as laid down by the Treaty,between Community institutions and Member States. I would merely ob-serve in this connection that it is the infringement of Community law it-self which creates an imbalance in the division of powers freely acceptedand subscribed to by the States. Any requirement which may be imposedby Community law to make reparation for loss or damage caused by suchan infringement constitutes merely a means of restoring the upset equi-librium.The State’s responsibility for legislative activity (on the part of the legis-lature proper or of the administrative authorities) constitutes also fromthat point of view a natural and necessary part of the Community legalsystem created by the Treaty and by the Member States themselves. I can-not but remind myself that it was the Member States which, completelyfreely, agreed the contractual rules underlying the system as a whole; and

996 DAVID EDWARD

10 Emphasis added.

the Member States are still the decisive protagonists in the process for theformulation of Community measures. Consequently, to hold that liabilityexists for failure to fulfil obligations is tantamount simply to increasingthe effectiveness of the system and does not involve any activity supple-menting – let alone supplanting – the legislature.

39. Certainly, I am aware that, in international law, the State’s obligationto make reparation for damage arises even where in practice the compen-sation is aimed at restoring the financial position of individuals vis-à-vis one or more States and not, as is sought in the cases now before theCourt, directly vis-à-vis individuals. However, it does not seem possible tome to ignore the specific, peculiar features of the Community legal order.That system is based, as far as is relevant for present purposes, on a contrac-tual foundation. The Treaty, in common also with other agreements estab-lishing international organizations, contains a series of obligations onMember States with regard to the achievement of the aims set outtherein, which have been freely subscribed to, and to the operation of aninstitutional structure whose powers are very largely, but not wholly, pre-defined. However, the peculiar, ultimate aim of the contractual basis in thecase of the Community is integration and more specifically «lay[ing] thefoundations of an ever closer union among the peoples of Europe»11, interalia through the achievement of the common market. It follows that tradi-tional instruments, those of international law in fact, prepared in order topromote the due, precise fulfilment of obligations on the part of the Mem-ber States have resulted and continue to result to a very great extent in giv-ing maximum, direct relevance to the legal position of individuals. The rea-son for this is that the obligations of the Member States and Community in-stitutions are directed above all, in the system which the Communitysystem has sought and sets out to be, to the creation of rights of individuals.This is the picture drawn by the authors of the Treaty and consolidatedby the Community legislature12.

5. ‘Van Gend en Loos’ – the Role of Judge Trabucchi

In a sense, it is self-evident that the reciprocal obligations of Mem-ber States and their nationals have a contractual foundation. TheTreaties are, after all, international contracts between States. But thesignificance of the contractual approach proposed by the Advocates

The Contractual Foundation of Member States’ Obligations to the Individual 997

11 Citing the Preamble to the EEC Treaty.12 Emphasis added.

General can be more fully appreciated in the light of what we nowknow about the background to the judgment of the Court of Justice inVan Gend en Loos. This is explored in a recent article by Morten Ras-mussen13, enhanced by the reminiscences of Paolo Gori, référendaireto Judge Trabucchi14.

Judge Trabucchi’s note en délibéré (now publicly accessible15) al-tered the course of the Court’s deliberations and may indeed be saidto said to have altered the course of history.

Gori underlines the importance to Italian civil lawyers like Trabuc-chi of the moral values inherent in individual rights, and explains howthis was reflected in the reasoning of the Court as to the significanceof Article 177 EEC (now Article 267 TFEU) in the scheme of theTreaty :

Quant au juge Trabucchi, qui, dans sa carrière de civiliste, s’était in-téressé d’avantage aux aspects concernant les droits individuels, on peutcomprendre qu’il optât pour une interprétation du système constitution-nel communautaire de nature à favoriser l’élargissement du domaine desdroits individuels et des possibilités de leur sauvegarde. Les voies de re-cours directs des particuliers devant la Cour étant limitées, ce n’étaitqu’en ouvrant largement aux particuliers la voie d’un accès indirect parle biais des questions préjudicielles qu’on pouvait atteindre ce but, qui al-lait de pair avec l’exigence d’assurer en fait l’égalité de traitement descitoyens vis-à-vis de l’application du droit commun, en se prévalant de laprécieuse coopération des juges nationaux pour assurer le respect de cedroit dans les ordres juridiques internes. Or ce résultat ne pouvait être at-teint que si l’on reconnaissait largement l’effet direct de ce droit, memedans les cas où ces norms ne s’adressaient qu’aux États.

Trabucchi was, amongst other things, an expert in family law, andhis adherence to the moral dimension of Community law appears veryclearly in one of his last opinions as Advocate General:

998 DAVID EDWARD

13 M. RASMUSSEN, Revolutionizing European Law: a History of the Van Gend enLoos Judgment, in International Journal of Constitutional Law (I.CON) Vol. 12 (2014)No 1, pp. 136-163.

14 P. GORI, Souvenirs d’un survivant in Van Gend en Loos 1963-2013: ConferenceProceedings, Luxembourg 13 May 2013, Publications Office of the European Union2013, p. 29-35.

15 The text of Judge Trabucchi’s Note addressed to the other judges can be foundin S. AZZALINI (a cura di), La formazione del diritto europeo: giornata di Studi per Al-berto Trabucchi nel centenario della nascita, 2008, pp. 213-223.

The migrant worker is not regarded by Community law – nor is he by theinternal legal systems – as a mere source of labour but is viewed as ahuman being16.

Meanwhile, in the field of public international law, there had beena parallel development in thinking about the place of the individual inthe structure of the law. In An International Bill of the Rights of Man,published in 1945, Hersch Lauterpacht condemned the conventionalapproach under which «the rights of man were given a foundation nomore solid or secure than the law of the sovereign State». As he said:

The sovereign State, in an exclusive and unprecedented ascendancy ofpower, became the unsurpassable barrier between man and the law ofmankind. The human being became, in the offensive, but widely currentterminology of the experts, a mere object of international law.17

In a letter to his wife he explained:

The purpose of the law of nations cannot be permanently divorced fromthe fact that the individual human being – his welfare and the freedom ofhis personality in its manifold manifestations – is the ultimate unit of alllaw18.

So, when the Court said in Van Gend en Loos that the nationals ofMember States are the «subjects» (rather than the «objects») of theCommunity’s «new legal order of international law», the Court wasexpressly rejecting the conventional approach urged by the MemberStates, and asserting the new approach to international law proposedby Lauterpacht.

The essential point made in the judgment is that the rights of theindividual as a «subject» of Community law are inseparable from –and are indeed an integral part of – the reciprocal contractual obliga-tions undertaken by the Member States. This was made more explicitthe following year in the Court’s judgment in Costa v ENEL, whichrefers to «a legal system accepted by [the Member States] on the basis

The Contractual Foundation of Member States’ Obligations to the Individual 999

16 ECJ, 17 June 1975, Mr & Mrs F v Belgium, Case 7/75, 679 at p. 696.17 H. LAUTERPACHT, An International Bill of the Rights of Man, Oxford, 1945, re-

published 2013, Introduction, p. 5 (emphasis added).18 Letter dated 4 September 1942, quoted in E. LAUTERPACHT, The Life of Sir

Hersch Lauterpacht, Cambridge, 2010, p. 252.

of reciprocity» as requiring the precedence of the law thus createdover prior or subsequent national law19.

The way in which Advocate General Tesauro explained the con-tractual foundation of EU law in the passages quoted above takes usstraight back to the language and thought of Van Gend en Loos. It pro-vides a legally coherent explanation as to why the fundamental princi-ples of EU law (primacy, direct effect and State liability) are firmlybased within the overall logic of the Treaties as instruments of interna-tional law.

6. The Contractual Foundation and the Doctrine of Sovereignty

The concern that EU law and its doctrines of primacy, direct effectand State liability are incompatible with national and parliamentarysovereignty continues to haunt the chancelleries of Europe. It led onlyrecently to the enactment in the United Kingdom of Section 18 of theEuropean Union Act 2011, which provides that:

Directly applicable or directly effective EU law (that is, the rights, pow-ers, liabilities, obligations, restrictions, remedies and procedures referredto in section 2(1) of the European Communities Act 1972) falls to berecognised and available in law in the United Kingdom only by virtue ofthat Act or where it is required to be recognised and available in law byvirtue of any other Act.

(This is a toned-down version of the original proposal20 and per-haps goes no further than what had been said many years before bythe English judge, Lord Bridge, in the House of Lords in the Factor-tame case21).

The statutory proclamation in Section 18 may offer British judges

1000 DAVID EDWARD

19 ECJ, 15 July 1974, Costa v ENEL, Case 6/64, 585 (page 1141 in the French Re-cueil), para 3.

20 «It is only by virtue of an Act of Parliament that directly applicable or directlyeffective EU law (that is, the rights, powers, liabilities, obligations, restrictions, reme-dies and procedures referred to in section 2(1) of the European Communities Act1972) falls to be recognised and available in law in the United Kingdom».

21 R v Secretary of State for Transport, ex parte Factortame [1991] 1 A.C. 603 at p.658-59, quoted by Advocate General Léger in Hedley Lomas (supra, note 5) at para107 and footnote 122.

a solution to the perennial problem of reconciling the binding force ofEU law with the doctrine of the sovereignty of Parliament. But theidea that the locus standi of individuals to assert their Treaty rights de-rives (and can only derive) from implementing legislation passed bythe national parliament was precisely the approach that was arguedunsuccessfully by the national governments (and in a modified formby Advocate General Roemer) in Van Gend en Loos.

It seems to me that the contractual approach urged by AdvocatesGeneral Tesauro (explicitly) and Léger (implicitly) offers the only sat-isfactory legal answer to the argument about parliamentary sover-eignty. The contractual obligations of the Member States vis-à-vis eachother and their nationals, and the consequential (consensual) limita-tion of their freedom of action, are themselves an expression of Statesovereignty. The rights of individuals flowing from that act of statesovereignty (and the obligations that go with them) cannot then be de-pendent on an act of an organ of the State (however ‘sovereign’ thatorgan may be in national law).

7. The Contractual Foundation and the «Independence» Issue

The issues raised by the Advocates General have acquired a newresonance in the current discussion of movements for independencein Scotland and Catalonia. On that question, the President of the Eu-ropean Commission, José Manuel Barroso, has said this:

The EU is founded on the Treaties which apply only to the MemberStates who have agreed and ratified them. If part of the territory of aMember State would cease to be part of that state because it were to be-come a new independent state, the Treaties would no longer apply to thatterritory. In other words, a new independent state would, by the fact ofits independence, become a third country with respect to the EU and theTreaties would no longer apply on its territory22.

Mr van Rompuy, President of the European Council has made astatement to the same effect and in almost identical words:

The Contractual Foundation of Member States’ Obligations to the Individual 1001

22 Letter to the Chairman of the House of Lords Economic Affairs Committee ofthe United Kingdom Parliament – see http://www.parliament.uk/documents/lords-committees/economicaffairs/ScottishIndependence/EA68_Scotland_and_the_EU_Bar-roso’s_reply_to_Lord_Tugendhat_101212.pdf.

The separation of one part of a Member State or the creation of a newState would not be neutral as regards the EU Treaties. The EuropeanUnion has been established by the relevant treaties among the MemberStates. The treaties apply to the Member States. If a part of the territoryof a Member State ceases to be a part of that state because that territorybecomes a new independent state, the treaties will no longer apply to thatterritory. In other words, a new independent state would, by the fact ofits independence, become a third country with respect to the Union andthe treaties would, from the day of its independence, not apply anymoreon its territory.

It is noteworthy that in both cases the Presidents refer only to theMember States and their territory. Both of them assume (which is con-testable) that there would necessarily, in EU law, be a ‘continuator’ or‘successor’ State, whose membership of the Union would continueundisturbed, while the ‘separating’ State would become a ‘new’ Statevis-à-vis the Union. Neither of them appears to have considered theimplications of Article 50 TEU (added by the Lisbon Treaty) whichprescribes a period of negotiation before a Member State (and its ter-ritory) can withdraw from the Union.

Most importantly, neither of them says a word about the rights ofthe individuals who may be affected, far less the effect upon them ascitizens of the Union. It can be argued that, since citizenship of theUnion is a function of nationality of a Member State23, citizenship ofthe Union must necessarily be lost by «transfer» of nationality to anew, independent State. But that argument begs the question whetherthe Barroso/van Rompuy theory is correct in the first place.

The question at issue is surely not a question of «territory» only.The territory of Member States is occupied by human beings – «na-tionals» or «citizens» towards whom all the Member States have,through the Treaties, incurred contractual obligations, while imposingupon them liabilities and responsibilities.

On the faith of the Treaty provisions, the people of the Union havecreated a complex skein of budgetary, legal, political, financial, com-mercial and personal relationships, liabilities and obligations. Theserelationships, liabilities and obligations are multilateral and, in gen-eral, reciprocal. The nationals of each Member State have acquiredrights of citizenship and free movement vis-à-vis all the others – theirterritory, their institutions, their economic structures and their people.

1002 DAVID EDWARD

23 Art. 20 TFEU.

They include (to take only four out of hundreds of possible examples)investors in the corporate sector, Erasmus and other students, migrantworkers, and fishermen operating in the waters of other MemberStates.

It cannot surely be legally correct, as Barroso and van Rompuy ap-pear to suggest, that a «separating State», its citizens and its land andsea area must – at the moment of separation or on some other unspec-ified date – be cast out into a legal limbo where the Treaties no longerapply. Until the moment of separation, they would remain an integralpart of the EU; all EU citizens living in the separating State wouldenjoy all the rights of citizenship and free movement; and the samewould apply, correspondingly, to all other EU citizens and companiesin their relations with that State. Then, at the midnight hour, all theserelationships would come abruptly to an end.

The logical consequence in law would be that, from that moment,the acquis communautaire would no longer, as such, be part of the lawof the separating State. The State would cease, for example, to be partof the Customs Union and would no longer be constrained as to therates of corporation tax or VAT (nor indeed be bound to transfer aproportion of VAT to the coffers of Brussels). Erasmus students study-ing there would become «foreign students» without rights. Migrantworkers would lose their rights under EU law to social security. Andthe whole land and sea territory of the separating State would not sim-ply cease to be part of territory of the EU, but would cease to be forany purpose within the jurisdiction of the EU.

Notwithstanding Article 50 TEU, there would be no legal obliga-tion upon the State concerned, the EU institutions or the other Mem-ber States to enter into any negotiations before separation took effectin order to avoid such a remarkable, and potentially uncontrollable,situation coming to pass. All the pious rhetoric about democracy,equality and solidarity with which the Member States have inflated thepages of the Treaties would be shown to be platitudinous hot air.

Two great Italians, Giuseppe Tesauro, and Alberto Trabucchi be-fore him, have reminded us that we – States and citizens, parliaments,councils, commissions, corporations and human individuals – arebound together as part of a compact without precedent from whichwe derive rights and towards which we owe obligations. Whether ornot the independence movements in Scotland, Catalonia or otherparts of the EU are successful, it is as well to remind ourselves that lexnon cogit ad absurdum.

The Contractual Foundation of Member States’ Obligations to the Individual 1003